The Reckoning: Understanding the International Criminal Court

AA FacingFacing HistoryHistory and and Ourselves Ourselves Study Study Guide Guide

Teaching The Reckoning: Understanding the International Criminal Court

Created to accompany film modules of

a film by Skylight Pictures Facing History and Ourselves is an international educational and professional development organization whose mission is to engage students of diverse backgrounds in an examination of racism, prejudice, and antisemitism in order to promote the development of a more humane and informed citizenry. By studying the historical development of the Holocaust and other examples of genocide, students make the essential connection between history and the moral choices they confront in their own lives. For more information about Facing History and Ourselves, please visit our website at www.facinghistory.org.

Facing History and Ourselves® is a trademark registered in the U.S. Patent & Trademark Office.

To download a PDF of this guide free of charge, please visit www.facinghistory.org/reckoning

Facing History and Ourselves Headquarters 16 Hurd Road Brookline, MA 02445-6919 www.facinghistory.org ABOUT FACING HISTORY AND OURSELVES

Facing History and Ourselves is a nonprofit educational organization whose mission is to engage students of diverse backgrounds in an examination of racism, prejudice, and antisemitism in order to promote a more humane and informed citizenry. As the name Facing History and Ourselves implies, the organization helps teachers and their students make the essential connections between history and the moral choices they confront in their own lives, and offers a framework and a vocabulary for analyzing the meaning and responsibility of citizenship and the tools to recognize bigotry and indifference in their own worlds. Through a rigorous examination of the failure of democracy in Germany during the 1920s and ’30s and the steps leading to the Holocaust, along with other examples of hatred, collective violence, and genocide in the past century, Facing History and Ourselves provides educators with tools for teaching history and ethics, and for helping their students learn to combat prejudice with compassion, indifference with participation, myth and misinformation with knowledge.

Believing that no classroom exists in isolation, Facing History and Ourselves offers programs and materials to a broad audience of students, parents, teachers, civic leaders, and all of those who play a role in the education of young people. Through significant higher education partnerships, Facing History and Ourselves also reaches and impacts teachers before they enter their classrooms.

By studying the choices that led to critical episodes in history, students learn how issues of identity and membership, ethics and judgment have meaning today and in the future. Facing History and Ourselves’ resource books provide a meticulously researched yet flexible structure for examining complex events and ideas. Educators can select appropriate readings and draw on additional resources available online or from our comprehensive lending library.

Our foundational resource book, Facing History and Ourselves: Holocaust and Human Behavior, embodies a sequence of study that begins with identity—first individual identity and then group and national identities, with their definitions of membership. From there the program examines the failure of democracy in Germany and the steps leading to the Holocaust—the most documented case of twentieth-century indifference, de-humanization, hatred, racism, antisemitism, and mass murder. It goes on to explore difficult questions of judgment, memory, and legacy, and the necessity for responsible participation to prevent injustice. Facing History and Ourselves then returns to the theme of civic participation to examine stories of individuals, groups, and nations who have worked to build just and inclusive communities and whose stories illuminate the courage, compassion, and political will that are needed to protect democracy today and in generations to come. Other examples in which civic dilemmas test democracy, such as the Armenian Genocide and the United States civil rights movement, expand and deepen the connection between history and the choices we face today and in the future.

Facing History and Ourselves has offices or resource centers in the United States, Canada, and the United Kingdom as well as in-depth partnerships in Rwanda, South Africa, and Northern Ireland. Facing History and Ourselves’ out- reach is global, with educators trained in more than 80 countries and delivery of our resources through a website accessed worldwide with online content delivery, a program for international fellows, and a set of NGO partnerships. By convening conferences of scholars, theologians, educators, and journalists, Facing History and Ourselves’ materials are kept timely, relevant, and responsive to salient issues of global citizenship in the twenty-first century.

For more than 30 years, Facing History and Ourselves has challenged students and educators to connect the com- plexities of the past to the moral and ethical issues of today. They explore democratic values and consider what it means to exercise one’s rights and responsibilities in the service of a more humane and compassionate world. They become aware that “little things are big”—seemingly minor decisions can have a major impact and change the course of history.

For more about Facing History and Ourselves, visit our website at www.facinghistory.org. ACKNOWLEDGMENTS

Primary Writer: Elisabeth Fieldstone Kanner

Facing History and Ourselves extends much gratitude to the many individuals and groups whose thoughtful conversations, committed partnerships, and generous support made this project possible. Special recognition goes to the filmmakers at Skylight Pictures—Pamela Yates, Peter Kinoy, and Paco de Onís—for their patience and wisdom in working with us to make their documentary more accessible for classroom use, and to The Fledgling Fund for its support of that work. We would also like to thank the Righteous Persons Foundation for its generous support for our work to bring The Reckoning to teachers and students around the country, including the development and production of this study guide and our work on the film modules.

We would also like to recognize our staff and others who contributed to the creation of this study guide: Our editorial team, Adrianne Billingham Bock, Deb Chad, Adam Strom, Marc Skvirsky, Marty Sleeper, Dimitry Anselme, and Margot Stern Strom, reviewed numerous iterations of the manuscript. Rebecca Hamiltion shared with us her experience in Sudan and directly contributed to the content of this guide. Elisabeth Fieldstone Kanner, the primary writer, brought energy, efficiency, and critical thinking to the forefront of this project. Maria Hill coordinated an infinite number of details throughout our partner- ship with Skylight Pictures to keep staff and the project on-track. Our research interns, Sara Skvirsky, Chelsea Prosser, and Nicole Zito, devoted countless hours to the project. Lastly, Catherine O’Keefe over- saw the production of the study guide.

ABOUT OUR PARTNER

For 25 years Skylight Pictures has been committed to producing artistic, challenging and socially relevant independent documentary filmson issues of human rights and the quest for justice. Through the use of film and digital technologies, they seek to engage, educate and increase understanding of human rights amongst students, the public at large and policy makers, contributing to informed decisions on issues of social change and the public good.

www.skylightpictures.com TABLE OF CONTENTS

Rationale 6

Using This Study Guide 7

Pre-viewing: The Reckoning: The Battle for the International Criminal Court 10

Viewing Guides (includes Background, Questions, Documents, Lesson Ideas and Related Links)

Law or War: The Creation of the International Criminal Court 12

Seeking Peace and Seeking Justice: The ICC and Uganda 30

International Law, Testing the Limits: The ICC and Darfur 48

Post-viewing: Extensions and Assessment 68

International Justice Glossary 70

Timeline: Key Moments in the History of International Criminal Law 76 RATIONALE

Our interest in issues of justice began more than 35 years ago when the first Facing History students raised essential questions about judgment as they studied the rise of the Nazis and the steps leading to the Holocaust. They asked: Who is responsible for these crimes? How do you decide who is guilty? What should happen to people who do terrible things? What are the consequences for people who stand by while injustice and violence take place around them? In response to students’ authentic curiosity, we asked scholars to help us add materials about judgment and justice to our resource book Facing History and Ourselves: Holocaust and Human Behavior. Resources about the Nuremberg Tribunals, the trials that followed the Holocaust, helped adolescents learn about the first time in history that “crimes against humanity” were tried in a court of law. Encouraged by the ideas and questions these new materials elicited in students, we extended our educational journey for classrooms––what we call our scope and sequence––to encourage students and educators to reflect on judgment, prevention, and legacy after they have studied a particular moment in history. We also began to learn about how people in different contexts have addressed questions of judgment after periods of conflict, injustice, violence, and human rights abuses. We explored the work of truth commissions in post-apartheid South Africa, we studied traditional justice systems in Rwanda, and we looked at reconciliation efforts in Northern Ireland. More questions emerged: “How can a society rebuild after experiencing the trauma of hatred, division, or genocide?” And ultimately, “how can we prevent these atrocities from happening again?” Our online module, Transitional Justice: Reconstructing Self and Society, is an attempt to address these questions.

With the publication of the online study guide and website, Teaching The Reckoning: Understanding the International Criminal Court (www.facinghistory.org/reckoning) we continue to explore important questions of judgment by looking at the creation of the International Criminal Court (ICC). Ever since the Nuremberg Trials, individuals around the world have imagined how an international judicial body could be used to prevent genocide, crimes against humanity, and other violations of civil and human rights. In 2002, over 100 nations made this vision a reality with the establishment of the International Criminal Court in The Hague. To help classrooms explore some of the successes and challenges this new court has faced, Facing History has partnered with Skylight Pictures, the producers of the filmThe Reckoning: The Battle for the International Criminal Court. The filmmakers have collaborated with a team at Facing History to create three short video modules—each one focusing on an important dilemma raised by the court related to issues of sovereignty, impunity, and peace. These modules help students confront the complexity of justice and judgment in a global context, and make connections to their own lives, by rais- ing questions such as: Are wrongdoers less likely to commit crimes when they think they might be caught and punished? What is justice? Does it look the same in all communities? Under what conditions does an institution have the right to intervene in the affairs of an individual or an independent nation? How can individuals and nations work together to create a safer, more just community? Can post-conflict communities attain peace without first achieving justice for the victims? This study guide has been developed to help classrooms investigate these important questions and to engage students as moral philosophers and civic agents. It is our belief that helping adolescents think deeply about justice builds their capacity to work toward the prevention of violence and injustice in their own communities and around the world.

TEACHING The Reckoning: Understanding the International Criminal Court Using This sTUdY gUide

The purpose of this study guide is to help students learn about dilemmas of international justice through exploring the creation of the International Criminal Court (ICC). These materials have been designed to be used with three film modules based on the feature-length documentary The Reckoning: The Battle for the International Criminal Court by Skylight Pictures. Each module focuses on a specific theme and content area.

Description of The Reckoning Film Modules Go to www.facinghistory.org/reckoning to view all three film modules The 15-minute filmLaw or War: The Creation of the International Criminal Court describes the creation of the firstpermanent international court in history established to investigate and prosecute individual perpetrators, no matter how powerful, for genocide, war crimes, and crimes against humanity. This module provides details about the structure of the court and presents the challenges and opportunities this new court raises for the international community.

The 16-minute filmSeeking Peace and Seeking Justice: The ICC and Uganda explores the role of the ICC in Uganda, where a civil war between the government and the Lord’s Resistance Army (LRA) has resulted in the abduction of children to be used as child soldiers and the displacement of more than a million Ugandans from their homes. This module focuses on dilemmas raised by pursuing justice and peace at the same time.

The 13-minute filmInternational Law, Testing the Limits: The ICC and Darfur investigates the role of the ICC in bringing perpetrators to justice in the Darfur region of Sudan, where genocide has claimed hundreds of thousands of lives and violence has displaced more than two million Darfuri children, women, and men. This module illuminates a major challenge for the ICC: how to bring the accused to trial without any authority to make arrests.

Students from middle school to graduate school can engage with these films. Recognizing the unique- ness of each classroom context, we have developed flexible Viewing Guides for each module. Viewing Guides include the following parts:

• Background: The information in this section provides basic context for the material students will see in the modules. • Viewing guide questions: These sets of questions explore each module’s specific content, as well as the larger themes that the module addresses. The questions on these viewing guides can be used to facilitate large and small group discussions, prompt reflective writing, develop projects, and evaluate student understanding. • Documents: Six documents, two for each module, have been selected to illuminate different perspectives and to deepen students’ understanding of key themes, such as justice and sovereignty. Each document is framed by an introduction and followed by Connections questions. • Lesson ideas: We suggest a variety of classroom activities to support students’ exploration of the films and the documents. In addition to lesson ideas relevant to each module, we have also

Using this Study Guide developed a pre-viewing lesson idea, designed to prepare students to engage with this material, and a post-viewing lesson idea, which includes assessment and extension activity suggestions. • Related links: To learn more about the content addressed in the modules, refer to the online resources we have identified.

Additionally, at the back of this study guide you will find additional materials we have developed to support students’ work with this material: • International Justice Glossary: This glossary includes key ideas and terms mentioned in the film and can be a helpful resource to students before or after they view the modules or while reading the documents.

• Timeline: The timeline places the creation of the ICC in historical context and provides links directing students to more information about key moments in the history of international criminal justice.

Educators will use these materials differently. If time is limited, some classrooms might view one module and focus on one or two questions from the related viewing guide. Other teachers might use many of these materials as the backbone of an entire unit focused on the theme of justice. Regardless of how much time students will spend exploring these materials, we recommend a similar journey:

1. Pre-viewing The Reckoning: Before learning about the particulars of the International Criminal Court, we hope all students have the opportunity to reflect on the meaning of justice and the role of courts, in general. “Pre-viewing The Reckoning” (found on page 10) suggests several ways you can prepare students to view the modules.

2. Watching The Reckoning film modules: Facing History has worked with Skylight Pictures to pro- duce three film modules that can be viewed on their own or as a series. Whether students view one module or all three, we hope they have the opportunity to deeply consider the dilemmas that emerge as the ICC begins to investigate and prosecute crimes. According to an ICC staff member interviewed in the film, “Justice is easier said than done,” and we want this message— the complexity of pursuing justice on an international scale—to come through for students. Viewing guide questions help highlight this complexity by illuminating different perspectives related to international justice. The ideas in these viewing guides are meant to complement, not replace, the questions raised by students themselves as they watch the modules. After exposure to new material, the best questions are often the simplest: What have you just seen? What ideas strike you as important or interesting? What questions does this material raise for you? What perspectives were represented? Which perspectives were left out or de-emphasized?

Below are some other ways to use the viewing guide questions to support students’ comprehension and interpretation of ideas raised in these film modules: • To help students record notes as they view the film, design a graphic organizer. Students can use their notes to address one or more of the questions on the viewing guide. • To give students the opportunity to process this material in writing, pause the film at important moments and ask students to record ideas, questions, and reactions in a journal. You could also use a specific viewing question to structure students’ journal writing. See our

TEACHING The Reckoning: Understanding the International Criminal Court teaching strategy “Journals in a Facing History Classroom” for more specific ideas about how to structure writing opportunities for students. • To structure discussions about ideas in the films, use the think-pair-share or the fishbowl teaching strategies. Both of these discussion formats help students focus on both shar- ing their ideas and listening to the ideas of others. Or, you could have small groups of students facilitate their own discussions, possibly drawing from one of the viewing guide questions.

3. Deepening understanding through post-viewing activities: Listening to students’ reactions to the film—noting their interests, questions, and misconceptions—should inform your decisions about which activities or questions you will explore next. We have provided several resources, such as supplementary documents and lesson ideas that can help you construct the most appropriate journey for your particular students.

4. Evaluating students’ understanding: Students reveal their mastery of material through the questions they ask and the comments they share. Writing assignments and projects provide another way for students to demonstrate and deepen their understanding of this material. The lesson idea The Reckoning: Extensions and Assessments provides specific examples of assignments and activities that can be used to evaluate students’ understanding of key ideas and themes related to international justice.

Using this Study Guide The Reckoning: The Battle for PRE-VIEWING the International Criminal Court

Lesson Ideas Detailed descriptions of all teaching strategies referred to in this lesson idea can be found in the teaching strategies section of our website: www.facinghistory.org. For related Facing History resources, refer to www.facinghistory.org/reckoning.

1. What is justice? A quick opening activity might ask students to complete the statement “Justice is . . . .” You could have all students share their responses as a wraparound. You could also challenge small groups or the whole class to reach consensus on a class definition of justice. After viewing the film or the modules, students can discuss how their definition of justice applies to the material they just viewed. They may also want to revise their definition based on new information they encounter.

2. International justice word wall: While studying international justice, students will likely encounter new vocabulary. Building a word wall in your classroom is an effective way to familiarize students with new terms. Students, individually or working in pairs, can be assigned a word from the International Justice Glossary found at the end of this guide to define for the word wall. It often helps students retain definitions if the word is connected to a visual. So you might ask students to provide an image, hand-drawn or found in a magazine or on the Internet, that represents their assigned word.

3. Justice anticipation guide: You can ask students to respond to an anticipation guide that asks students to express an opinion about justice-related statements. Here are some examples of statements you might use: • A strong judicial system can deter individuals from committing crimes. • The international community has the obligation to prosecute perpetrators of crimes against humanity if those perpetrators are not being held accountable in their own nation. • When a conflict is ongoing, achieving justice is equally as important as achieving peace. • After grave crimes have been committed, justice can best be achieved through reparations for the victims rather than punishment for the perpetrators. • Achieving justice for crimes committed against one group advances the civil and human rights for all people.

After students have studied international justice by watching one or more of the modules and/or reading the supplementary documents, you can have them review their anticipation guides to see how learning new information has changed their opinions. The four corners debate teaching strategy can be used to structure a whole-class discussion about statements on the anticipation guide.

4. Reviewing prior knowledge about courts: The film modules assume the viewers understand the basic workings of a criminal court. Before students view the films, you may want to see what they already know about how courts work, especially about the specific purpose of criminal courts (as opposed to civil courts) and the role of the prosecutor. You might ask students to draw and label a courtroom. Or students could create an identity chart for a court. After stu-

TEACHING The Reckoning: Understanding the International Criminal Court 10 dents identify what they know about courts ask them to consider questions such as: What is the purpose of a court? Why do nations establish court systems? Who are they for? How might society be different if there were no courts? Facing History interviewed Allan Ryan, who worked as a lawyer prosecuting Nazi war criminals for the United States Department of Justice. In this interview, Ryan speaks about the purpose of trials in a court of law. Having students listen to or read Ryan’s remarks is another way to help students think more deeply about the purpose of courts. This would be an appropriate text to use as the basis of a Socratic seminar or fishbowl discussion. The interview can be found on Facing History’s online module Transitional Justice: Reconstructing Self and Society.

5. International justice timeline: Another way to introduce the material covered in the film is by familiarizing students with the history of international justice. Students can read the Inter- national Justice Timeline for homework before viewing the film. Or students can review the timeline during class using the human timeline teaching strategy.

6. Defining “reckoning”: The three modules are adaptations of a feature-length documentary called The Reckoning: The Battle for the International Criminal Court. The word “reckoning” has many definitions. It can refer to a calculated guess, the act of considering options, or the settle- ment of rewards or penalties for an action. You can introduce any of the modules by first having students define the word “reckoning.” Have they ever heard this word before? In what context? (Students may be familiar with the expression “the day of reckoning” and “to reckon with.”) Then you can share the whole title with students and ask them to predict what this film will be about. Finally, you can share the filmmakers’ explanation of the title:

The title The Reckoning has three meanings: the reckoning of a world trying to bring the worst perpetrators of massive crimes to justice; the reckoning of the International Criminal Court becoming an effective global arbiter of justice; and the reckoning with the international community over whether or not we have the political will to carry out the arrest war- rants and fulfill the mandate of this new Court. (Point of View Discussion Guide, page 3)

11 Pre-Viewing the reckoning VIEWING GUIDE Law or War The Creation of the International Criminal Court

TEACHING The Reckoning: Understanding the International Criminal Court 12 BackgRoUnd To view the film module Law or War: The Creation of the International Criminal Court, visit www.facinghistory.org/video/reckoningmodule1 The 15-minute film module Law or War: The Cre- ation of the International Criminal Court explores the creation of the first permanent international court in history created to investigate and prosecute individual perpetrators, no matter how powerful, for genocide, war crimes, and crimes against humanity. When the court was established in 2002, the idea of international criminal justice was still relatively new. As long ago as 1899, 26 nations convened for an International Peace Conference, where they drafted the Con- vention with Respect to the Laws and Customs of War on Land, one of the firstformal statements of international laws related to war and war crimes. Nearly 50 years later, it took the atrocity of the Nazi Holocaust to bring the international community together to hold perpetrators responsible for war crimes. The prosecution of Nazi leaders at the Nuremberg Tribunals marks the first time The International Criminal Court in The Hague, Netherlands that an international criminal court was established. This tribunal set a precedent for the creation of later temporary tribunals, such as the tribunals for perpetrators of genocide in Rwanda and the former Yugoslavia.

In the hope of deterring future crimes, representatives from a wide range of nations met under the auspices of the United Nations to craft a draft treaty for a permanent international criminal court. That draft was formally presented at a 1998 conference in Rome, now known as the Rome Conference. A total of 120 national representatives voted for the treaty, but the Court could only become operational after a minimum of 60 nations ratified the treaty through their state legislatures—a goal that was accom- plished in 2002. As the International Criminal Court (ICC) began investigating its first cases in 2004, the international community has had to confront difficultdecisions about how to balance important, yet often competing, values of justice, peace, and sovereignty.

For more information about the ICC, refer to the frequently-asked-questions page of the ICC’s website (www.icc-cpi.int).

13 Viewing Guide for LaW or War: The CreaTIon of The InTernaTIonaL CrImInaL CoUrT VIEWING GUIDE QUESTIONS

The following questions can be used to facilitate large and small group discussions, prompt reflective writing, develop projects, and evaluate student understanding. For more ideas about how to use these questions to deepen students’ understanding of issues related to international justice, refer to the teaching strategies section of the Facing History website (www.facinghistory.org).

1. How did World War II and the Holocaust influence the development of international law? Describe the development of international justice since World War II. What factors and key moments led up to the establishment of the International Criminal Court? Why do you think it took 50 years after Nuremberg for nations to come together to establish the Court?

2. In his opening remarks at the Nuremberg Tribunal, Prosecutor Benjamin Ferencz stated, “We ask this court to affirm by international penal action man’s right to live in peace and dignity regardless of his race and creed.” What does this statement mean in your own words? In your community, what institutions, customs, and laws exist to protect “man’s right to live in peace and dignity regardless of his race and creed”? What else can be done, on a school, local, national, or global level, to protect the rights of all people to “live in peace and dignity”?

3. What does it mean for law to be “international”? What does it mean for law to be “national”? What challenges does pursuing international law present that working in a national legal system does not? What can international law achieve that national law cannot achieve? What can national law achieve that international law cannot achieve?

4. One hundred ninety-two nations are members of the United Nations. Representatives from 140 governments, including the United States, participated in the Rome Conference. What does this information tell you about the creation of the ICC? What does it mean for a court to be international? What gives an international court legitimacy?

5. Do you think that all nations have an ethical obligation to work toward preventing genocide, crimes against humanity, and war crimes, within their own boundaries and around the world? Why or why not?

6. What can nations do to prevent genocide, crimes against humanity, and war crimes? To what extent does joining the ICC support this goal of prevention? Why or why not?

7. The ICC is the first permanent international criminal court. What are the differences between temporary tribunals, such as those created after the genocides in the former Yugoslavia and Rwanda, and the ICC? What is the purpose of a criminal court (as opposed to a civil court)? What might a permanent criminal court be able to accomplish, if anything, that a temporary tribunal cannot accomplish?

8. What does the ICC do? What is the jurisdiction of the court? What crimes can the ICC prosecute? What are three ways that cases get to the ICC? Consider other cases that you believe should go to the ICC. How would those cases get there? Under what conditions would a

TEACHING The Reckoning: Understanding the International Criminal Court 14 genocide or war crimes case not come before the ICC?

9. In the film, Christina Chung refers to the ICC as a “court of last resort.” Why does Christina Chung call it that? What does this expression mean?

10. What is the Complementarity Principle? Because of this principle, how would you compare the power of the ICC and national courts? Under what conditions, if any, are national systems more powerful than the ICC? Under what conditions, if any, is the ICC more powerful than national legal systems? Under what conditions, if any, should an international court like the ICC be more powerful than a national court?

11. What beliefs or experiences have inspired young people from all over the world to join the staff of the ICC? What are some beliefs or experiences that have been especially significant in shap- ing your life? How might these beliefs or experiences influence your future career choices?

12. One ICC staff member comments on how working at the court has taught her that “justice is easier said than done.” Based on what you know about the workings of the ICC and about justice systems in your community, to what extent do you agree or disagree with this statement? What could happen to make justice easier to achieve?

13. What reasons does Bolton give for the United States government’s decision not to join the ICC? If you represented the United States, what other reservations might you want clarified if you were deciding whether the United States should join the court? How do individuals in the film counter any of these arguments? What actions or arguments might the prosecutor of the court make as they try to ease concerns raised by critics?

14. Does the ICC need United States participation for it to be credible? Does it need United States participation to be successful?

15. Fatou Bensouda, the ICC Deputy Prosecutor, explains the purpose of the ICC as follows:

During the previous century millions of people, many of them children, were victims of unimaginable atrocities. The International Criminal Court symbol- izes the hope that by ending impunity for such crimes we might prevent their occurrence and contribute to the peace, security and well-being of the world.

Why might many supporters of the ICC believe that the establishment of a permanent international criminal court would help prevent future crimes? To what extent do you believe that perpetrators might think twice about their actions if they know that they can be caught and punished? Consider examples from your own life or your knowledge of history when answer- ing this question. Besides prevention, what other reasons might encourage a nation to join the ICC?

16. At the end of this module, Benjamin Ferencz states, “It is so obviously correct that law is better than war.” Do you think it is possible for legal systems to prevent violent conflict? Can you

15 Viewing Guide for Law or War: The Creation of the International Criminal Court identify any examples, from history or from your own experience, of when rules have prevented violence? What kind of laws would best help communities and nations avoid violent conflict?

17. What message do you think the filmmakers are trying to express in this module? What leads you to this conclusion? What might be their motivation? If you were making a film about the ICC, how might it be different? What message might you want to express?

18. What other information would you need in order to have a better understanding of the ICC and how it works?

TEACHING The Reckoning: Understanding the International Criminal Court 16 A Vision for International Justice: The Preamble to the Rome Statute of the International Criminal Court

According to the International Association of Genocide Scholars, “In the twentieth century, genocides and state mass murder have killed more people than have all wars.”1 In addition to these deaths of inno- cent women, children, and men, millions more have been stripped of their rights, property, and dignity as human beings and as victims of violence.2 In many cases, the perpetrators of these crimes were never held accountable for their actions. Sometimes the nations in which these crimes occurred did not have a sufficiently robust judicial system to try alleged criminals; other times the governments themselves were complicit in the crimes.

In 1945, after the end of World War II, the international community embarked on a new approach to justice. Following the Nazi Holocaust, the Allied nations confronted an incredible moral and legal challenge: with Germany in shambles, who would hold Nazi perpetrators accountable for the unimaginable crimes they committed? To answer this challenge, France, Great Britain, Russia, and the United States joined together to establish the first ever international criminal trials—the International Military Tribunal at Nuremberg. The Nuremberg Tribunals set a precedent for other temporary international courts that were established after genocides in Yugoslavia (1993) and Rwanda (1994). The prevalence of temporary international tribunals coupled with continued violence around the world raised the question: Could it be possible to create a more permanent international criminal court? Could such a court serve as a deterrent for the worst atrocities? What crimes would come under the jurisdiction of an international criminal court? Under what conditions would this international court be able to supersede the authority of national courts? To address these questions, representatives from over 160 countries gathered in Rome from June to July of 1998 at a meeting called the Rome Conference. Coming from diverse cultures with differing views on justice, reaching agreement about the structure of an international criminal court required careful negotiation and compromise. Despite these challenges, the document drafted at this conference, the Rome Statute, was ultimately approved by 120 countries. The Rome Statute went into effect on July 1st 2002, thus beginning the process of establishing the International Criminal Court (ICC).3

The Rome Statute consists of two parts: The Preamble of the Rome Statute articulates the purpose and vision of the ICC; and the Articles of the Rome Statute4 outline the details of the court, including the jurisdiction of the court, the relationship of the court to the United Nations, and the penalties that the court can enforce.

17 Viewing Guide for Law or War: The Creation of the International Criminal Court The Preamble to the Rome Statute of the International Criminal Court

The States Parties to this Statute,

Conscious that all peoples are united by common bonds, their cultures pieced together in a shared heritage, and concerned that this delicate mosaic may be shattered at any time,

Mindful that during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity,

Recognizing that such grave crimes threaten the peace, security and well-being of the world,

Affirming that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation,

Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes,

Recalling that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes,

Reaffirming the Purposes and Principles of the Charter of the United Nations, and in particular that all States shall refrain from the threat or use of force against the territorial integrity or political inde- pendence of any State, or in any other manner inconsistent with the Purposes of the United Nations,

Emphasizing in this connection that nothing in this Statute shall be taken as authorizing any State Party to intervene in an armed conflict or in the internal affairs of any State,

Determined to these ends and for the sake of present and future generations, to establish an independent permanent International Criminal Court in relationship with the United Nations system, with jurisdiction over the most serious crimes of concern to the international community as a whole,

Emphasizing that the International Criminal Court established under this Statute shall be complementary to national criminal jurisdictions,

Resolved to guarantee lasting respect for and the enforcement of international justice…

TEACHING The Reckoning: Understanding the International Criminal Court 18 CONNECTIONS

1. Luis Moreno-Ocampo, Chief Prosecutor for the International Criminal Court, believes people need judicial institutions to help them behave well. He explains:

We all had the dream: If we put the bad guys in jail, the problem is solved . . . . It’s a more complex issue . . . . Because it’s not just bad guys and good guys . . . . 80% of us, we behave according with the circumstances. If you have $1 million in front of you in cash, and no one [will catch] you, and you can get the money––maybe you are tempted. But if you know the money is there— but there are cameras, and a bodyguard, and you’ll be in jail—you are not touching the money. It’s not about your values––it’s about the external circumstances . . . . You have to educate people in values, but we need institutions helping people to behave well, and not behave bad. That’s the point. So as humanity, we cannot change the individual behavior. But we can develop institutions to provide the right incentives to control the behavior.5

Why do you think Moreno-Ocampo believes so strongly in the importance of the ICC? How does the ICC provide incentives to help people “behave well”? What other types of institutions help people “behave well”? Besides institutions that help control behavior, Moreno-Ocampo states, “You have to educate people in values.” What values do you think need to be nurtured in order to sustain peaceful, productive communities? What are effective ways of instilling these values?

2. José Ayala Lasso, former United Nations High Commissioner for Human Rights, reports, “A person stands a better chance of being tried and judged for killing one human being than for killing 100,000.”6 What point do you think Lasso is trying to express in this comment? To what extent do you agree with this argument? What needs to be in place in order to bring someone to trial? What are the consequences if the conditions in a community or nation do not allow for perpetrators to be tried in a court of law?

3. Review each of the phrases in the preamble. Which statements do you most agree with? Are there any statements that you disagree with or that concern you? If so, which ones? Do you believe that nations should sign on to this document as it is currently written? Why or why not? What should nations consider as they make this decision?

4. The preamble to the Rome Statute states, “Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes.” What is impunity? What evidence, from history and your personal experience, suggests that crimes can be prevented if individuals believe they will be punished for committing them? Can you think of any evidence that demonstrates that the fear of “getting caught” and punished does not stop individuals from committing crimes? What do you think can be done to prevent people, especially those in positions of power, from committing crimes?

5. While the drafters of the Rome Statute believe that the ICC will prevent future atrocities, others doubt that the establishment of a permanent international criminal court will deter perpetrators from committing crimes. Besides prevention, what other reasons for joining the ICC does the preamble put forward? Do you agree or disagree with these reasons?

6. The Rome Statute reads, “Emphasizing that the International Criminal Court established under this

19 Viewing Guide for Law or War: The Creation of the International Criminal Court Statute shall be complementary to national criminal jurisdictions.” This means that the ICC is not intended to take the place of national courts; rather, the ICC has been established to step in only when national courts are unable or unwilling to bring perpetrators to justice. Why do you think the drafters of the Rome Statute included this idea in the Rome Statute? What might happen if the ICC could prosecute any case, regardless of how it was being handled by an independent nation?

7. According to Benjamin Ferencz, who was present at the Rome Conference, there were many details where it was difficult for representatives to find common ground. One of these areas of contention concerned the crimes that could be prosecuted by the court. They finally agreed on three crimes: genocide, war crimes, and crimes against humanity.7 Why do you think they selected these three crimes? Do you agree with their decision? Are there other crimes that you think should come under the jurisdiction of the International Criminal Court? For example, participants considered including torture, drug traffick- ing, and terrorism in the Rome Statute but ultimately decided to delay this decision.8

8. While the statute reads “nothing…shall be taken as authorizing any state party to intervene in an armed conflict or in the internal affairs of any state,” some argue that for the court to truly be effective it will have to interfere in what some leaders view as internal affairs. Others fear that the court, influenced by politics, may intervene in state affairs when it is not justified. How would you reconcile this paradox?

TEACHING The Reckoning: Understanding the International Criminal Court 20 Should the United States Join the ICC?: Statements by John Bolton and Benjamin Ferencz

On July 17, 1998, the Rome Statute, the founding document of the International Criminal Court, was overwhelmingly approved by the countries attending the Rome Conference. one hundred twenty voted in favor of the document. While representatives from the United States made many important contribu- tions to the Rome Statute, the United States was ultimately one of only seven nations who voted against it.* President Bill Clinton signed the treaty in the last days of his presidency in 2000. However, it was never submitted to the Senate for ratification. The fact that the United States is not a member of the ICC has sparked strong opinions on both sides of the issue. In this reading you will find two documents that exemplify the debate around the United States decision not to join the ICC.

In a speech in November, 2003 (excerpted below), John Bolton, an under-secretary of State who was later appointed Ambassador to the United Nations by President George W. Bush, expresses concerns that while the United States agreed with goals of the court, he believed that the court itself was flawed. While Bolton supported temporary international courts, he feared that membership in the ICC threat- ens United States sovereignty and could put American citizens and leaders in danger. In a statement to the Senate Foreign Relations Committee, Bolton explains his belief that the United States should not join, or even support, the ICC:

We should isolate and ignore the ICC. Specifically, I propose for the United States policy . . . the Three No’s: no financial support, directly or indirectly; no collaboration; and no further negotiations with other governments to improve the Statute. [. . .] This approach is likely to maximize the chances that the ICC will wither and collapse, which should be our objective.9

Since Bolton made this statement, American opposition to the ICC has decreased. As of 2009, United States officials have not indicated that they would adopt the Rome Statute, but they have demonstrated increasing support for the court.** Secretary of State Hillary Clinton explains the current United States position toward the ICC as follows: “Whether we work toward joining or not, we will end hostility toward the ICC and look for opportunities to encourage effective ICC action in ways that promote U.S. interests by bringing war criminals to justice.”10

Benjamin Ferencz is one of many Americans who have been trying to convince government officials to ratify the Rome Statute and officially join the ICC. In 1946, he served as Chief Prosecutor of Nazi criminals at the Nuremberg Tribunals. This experience had a profound influence on Ferencz. He shares, “Nuremberg taught me that creating a world of tolerance an